3:06-cr-00033
M.D. Ga.May 11, 2012Background
- Gartrell was convicted of conspiracy to possess with intent to distribute over 50 g crack, possession with intent to distribute over 20 g crack, and maintaining drug premises; sentenced to 125 months concurrent and 5 years supervised release.
- Indictment issued Sept. 18, 2007; trial Dec. 2007; verdicts on Counts 1, 2, 4, 5; co-defendant Kitty Smith also tried.
- Eleventh Circuit affirmed convictions and sentence on Aug. 19, 2009; rehearing denied Oct. 23, 2009; Supreme Court petition not filed.
- Gartrell filed §2255 motion Jan. 12, 2011 arguing ineffective assistance and prosecutorial misconduct; magistrate recommends denial.
- Court determines AEDPA timing is satisfied; record shows no merit to claims; no evidentiary hearing needed; COA denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel was ineffective under Strickland | Gartrell argues multiple failures by counsel | US contends performance reasonable and not prejudicial | No deficiency shown; no prejudice; claims fail |
| Opening statement variance and prejudice | Gov't misled on witnesses; prejudice alleged | Curative instructions cured any variance | Not prejudicial; properly curative instructions given |
| Impeachment of Johnson and Mitchell | Counsel failed to impeach with pretrial statements | Strategic choice; officers could impeach by omission if called | Strategy reasonable; no ineffective assistance |
| BB gun sentencing enhancement | Objection to enhancement should have prevailed | BB gun resembled a firearm; enhancement proper | Objection overruled; enhancement supported |
| Prosecutorial misconduct and perjury claims | Gov't lied or used false testimony | Testimony truthful; no perjury shown | No reversible misconduct; claims fail |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (deficient performance and prejudice prong required)
- Chandler v. United States, 218 F.3d 1305 (11th Cir. 2000) (Strickland applies to appellate counsel)
- Evitts v. Lucey, 469 U.S. 387 (U.S. 1985) (right to counsel on appeal via Strickland)
- Frazier v. Cupp, 394 U.S. 731 (U.S. 1969) (curative instructions can remedy misstatements)
- Andrews v. United States, 850 F.2d 1557 (11th Cir. 1988) (consistency not required in conspiracy verdicts)
- Provenzano v. Singletary, 148 F.3d 1327 (11th Cir. 1998) (trial strategy virtually unchallengeable)
- Heath v. Jones, 941 F.2d 1126 (11th Cir. 1991) (Strickland applies to appellate claims)
- United States v. Lyons, 53 F.3d 1198 (11th Cir. 1995) (circumstantial evidence supports conspiracy)
- United States v. Morales, 868 F.2d 1562 (11th Cir. 1989) (elements of possession with intent to distribute)